It’s hard to believe that Christmas is almost upon us – I have found that it’s true that the older you get, the faster time flies by! We all need to stop, take a deep breath, enjoy all of the blessings we have, and remember the reason for the season! With that in mind, I want to take a minute to update you on a few happenings within the Paralegal Division.

Annual Campaign

I’m pleased to announce that the Paralegal Division is invited and welcome to participate in the North Carolina Bar Foundation’s Annual Campaign (formerly the Patron Campaign). Your donation will help the following Services: Middle School Mock Trial Program, 4ALL Statewide Service Day, Law-Related Educationprograms, NC Free Legal Answers, and NCBF Pro Bono & Public Service Activities Department. I encourage you to click on this link https://www.ncbar.org/giving/donate-now/annual-fund-campaign/ if you are interested in learning more about the Annual Campaign and any of these very worthwhile programs your donations support.

On Tuesday, a panel of the Court of Appeals issued a unanimous decision in a Public Records Act case on a point not previously addressed: “We therefore hold that, in order to confer jurisdiction upon the trial court in a Public Records Act suit, the plaintiff must initiate mediation within 30 days of the filing of the responsive pleading as required by N.C. Gen. Stat. § 7A-38.3E(b).”

The Court rejected the argument that this new statutory requirement was merely procedural with enforcement in the discretion of the court in the judicial review.

The decision came in Jerry R. Tillett v. Town of Kill Devil Hills, Public Records Act – Mediation, Public Record Request; No Jurisdiction; Jurisdictional vs. Procedural Rules

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To many readers of this page, December thoughts regarding the North American Free Trade Agreement (“NAFTA”) might commonly arise in the context of preparing annual NAFTA certificates of origin. Origin documentation and other aspects of NAFTA compliance have become commonplace as the realities of a North American trading region have taken root and affected the way that companies source and manufacture their goods over the past quarter century.

NAFTA’s place in the U.S. economy became a key focus during the 2016 presidential election. Following the inauguration of President Donald J. Trump, the Trump Administration initially pivoted from positions taken during the campaign to terminate NAFTA to renegotiation with Canada and Mexico. For much of 2017, this process has played out in hotel conference rooms from Mexico City to Ottawa and Washington, D.C. Negotiating teams from Mexico, Canada, and United States (comprised of more than 30 different topical groups) have held five rounds of talks regarding the renegotiation and modernization of NAFTA.

Government and public sector attorneys may not have thought the FCC’s net neutrality repeal had direct impact on their work. This article, on the newsletter Route Fifty, however, provides information on a little-publicized feature of the FCC’s net neutrality repeal. The net neutrality repeal apparently also sets out an FCC policy of broadly expanding preemption of state and local laws and rules related to broadband, cell providers, etc.

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Protection of key manufacturing and critical infrastructure systems must be provided the same priority as other sectors of our economy if we are to protect basic operations and competitive superiority to which we have become accustomed.[1] Basic industrial and manufacturing operations that have long relied on commercial off-the-shelf products are sitting targets to the same maladies that enterprise networks face. Modern industrial central systems (ICS or SCADA) must employ a security protocol that reduces operational risks, prevents system breaches and becomes compliant with all best practices while leveraging existing infrastructure and maximizing return of investment on existing equipment.

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Of all the blockchain-based innovations, smart contracts running off blockchain may be the most transformative for international trade. Smart contracts will go beyond eliminating the reliance on physical paper in international transactions by potentially removing the need for financial intermediaries altogether. Smart contracts can be described as self-executing contracts that run off code, which initiate performance and automatically impose penalties when predefined conditions are met.[1] They essentially serve as automated escrow robots.[2]

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If you have already volunteered as a supervising attorney with the UNC School of Law’s Cancer Project, you know how meaningful advance directive documents can be in bringing peace of mind to individuals facing daunting and difficult medical situations. If you have not had the chance to volunteer in this role, you are invited to participate now!

To learn more about this program, and about the substantive law which it provides, please register to attend the UNC Cancer Pro Bono Legal Project CLE, to be held at the UNC School of Law on January 26 at 9 a.m. This CLE will provide an overview of substantive law helpful to attorneys participating in the UNC Cancer Pro Bono Legal Project, a collaborative project sponsored by the UNC School of Law’s Pro Bono Program, N.C. Cancer Hospital, and Legal Aid of North Carolina. The CLE also will include a review of changes to the law surrounding advance directives documents, new for 2018.

While this CLE is provided free of charge — in hopes that you will volunteer (or continue to volunteer!) as a supervising attorney through the program — you will be responsible for paying your own CLE fee to the state bar ($3.50/hour).

Picture this: You’re about to file a Motion to Dismiss. You filed one last month, too. But was that in Guilford County . . . or Mecklenburg County? You can’t remember. When do you have to file a Notice of Hearing? How do you submit a calendar request?

Sound familiar? Attorneys practicing in North Carolina state courts often lament the disparities among various counties’ local rules and practices. Nevertheless, knowledge of each county’s requirements for civil practice is crucial to the effective representation of your clients.

In this three-part blog series, we asked Trial Court Administrators (“TCAs”) in several of the most populated counties in North Carolina to discuss attorneys’ common mistakes and frequently asked questions, and to give advice for attorneys practicing in their respective counties.

For our first installment, we highlight our discussions with TCAs in the Triad and Sandhills regions of North Carolina: Guilford, Forsyth, and Cumberland counties. We created the five rules below based on these discussions.

Rule No. 1: Know Your Local Rules and Rules of Civil Procedure

First and foremost, attorneys should familiarize themselves with the local rules of the county in which they are practicing. This might seem like a no-brainer, but as Craig Turner, the TCA for the 18th Judicial District (Guilford County), stated: “Most mistakes occur because attorneys are just not well-versed in submitting the necessary paperwork for their case with the court.” Moreover, Mr. Turner has found that attorneys are not familiar with civil procedure, in general, which creates even more mistakes. Overall, attorneys should thoroughly read the North Carolina Rules of Civil Procedure, mediation rules, and the local rules of each county in which they are handling cases. If you only follow one rule—follow this one.

Rule No. 2: Utilize the County’s Online Resources

Attorneys should take advantage of the online resources each county has to offer, specifically, forms and calendars. Multiple TCAs noted that they spend significant time and resources updating their judicial district’s content on the North Carolina Court System website. Reviewing the calendar online, which specifies dates for motions for the entire year, will eliminate a common question received by Mr. Turner: “When can my motion be put on the docket?” Further, once your motion is calendared, according to the TCAs, it is imperative that attorneys track their motions for each case to avoid missing deadlines, filing delinquent administrative responses, and submitting late filings to the Court.

Rule No. 3: When Rules No. 1 and No. 2 Fail, Contact the TCA or TCC

Communication is key. After reading the local rules and reviewing the online resources, if attorneys still have questions they should reach out directly to the TCA or Trial Court Coordinator (“TCC”) of that judicial district. As noted by Cecelia Gordon, the TCA for 21st Judicial District (Forsyth County), attorneys should “never assume,” rather they should call the office if they are unsure of something, such as what type of calendar request is required by that judicial district. Communication, of course, is a two-way street. Attorneys should always promptly respond to questions from court administrators. Too often, Mr. Turner relayed, attorneys fail to respond in a timely manner, which leads to “unnecessary delays and duplication of work.”

Rule No. 4: Actually File for Secured Leave

The process for attorneys to obtain secured leave is provided by Rule 26 of the General Rules of Practice for the Superior and District Courts. However, as Ellen Hancox, the TCA for the 12th Judicial District (Cumberland County), noted, many attorneys do not file designations of secured leave.

The secured leave procedure exists for a reason: to provide for “the heightened level of professionalism that an attorney is able to provide when the attorney enjoys periods of time that are free from the urgent demands of professional responsibility and to enhance the overall quality of the attorney’s personal and family life[.]” Sounds like a goal we can all get behind.

Failing to properly file for secured leave in each county in which the attorney has a pending matter can cause scheduling headaches for the TCAs. Err on the side of caution and file for secured leave whenever you know you will be unavailable to appear in court for personal reasons. Prior to filing, remember to check each county’s form bank and use the proper secured leave form.

Relatedly, if a scheduling conflict arises because of an attorney’s conflicting engagements in different courts, Ms. Hancox noted that attorneys must refer to Rule 3.1 of the General Rules of Practice to determine the priority of each matter. Once the matter’s priority is established in accordance with Rule 3.1, refer to our Rule # 3, above, and let the TCA know about the conflict.

Rule No. 5: Don’t Assume that the TCA has the Same Information as the Clerk’s Office

North Carolina state courts have not implemented an electronic filing system at the trial-level (yet). Therefore, as a general matter, both the county clerk’s office and the TCA or TCC (if the judicial district has one) are charged with collecting case documents and managing each case in accordance with their respective responsibilities. Ms. Hancox warned, however, that attorneys should not assume that the TCA’s office has all of the same file materials as the county clerk’s office. For example, in Cumberland County, Local Civil Calendaring Rule 1.9 provides that “all papers filed in civil [superior court] actions . . . shall include as the first page of the filing an original plus one copy of the appropriate cover sheet[.]” The reason for this rule, Ms. Hancox stated, is to provide both the clerk’s office and the TCA with at least a cursory description of every document filed and the identity of the filer. If a party neglects to file the requisite cover sheet and copy of the cover sheet (as many have in the past) then the TCA will not be aware of that filing—or, with respect to the filing of an Answer or Notice of Appearance, the TCA might not be aware of your involvement in the case at all.

Therefore, do not assume that everything you file with the clerk’s office has necessarily made its way into the TCA’s hands, and pay particular attention to rules requiring that two copies of certain documents be provided. In all likelihood, one of those documents is for the TCA.

Stay tuned for the next two installments of this series, where we discuss what your TCA wants you to know in the Eastern and Western regions of the state.

The 4th U.S. District Court of Appeals has been relatively quiet as of late, at least with respect to employment law, but there are two fairly recent decisions worth flagging. On Nov. 28, 2017, in a published decision, the Fourth Circuit affirmed the Western District’s grant of summary judgment in Penley v. McDowell County Board of Ed., No. 16-2034 (http://www.ca4.uscourts.gov/opinions/162034.P.pdf). Penley, the plaintiff below, was a teacher at McDowell County High School (“MHS”). After Penley allegedly made an inappropriate comment to his students, MHS suspended him in April 2013. MHS investigated the allegation and recommended that Penley be dismissed. Penley, in turn, brought action against MHS’ principal, superintendent, and board of education, alleging that MHS’ decisions were in retaliation for Penley’s political speech, which was his participation in political campaigns. Judge Cogburn found no credible evidence connecting Penley’s participation in political campaigns to his termination and granted summary judgment. Circuit Judges Wilkinson, Duncan, and Thacker affirmed the decision.

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